Observations of the legal scene from the Cornhusker State, home of Roscoe Pound and Justice Clarence Thomas' in-laws, and beyond.

Friday, January 19, 2007

Follow up: although Nebraska Supreme Court did not walk meth-head mom Brandy Blair for allowing her 2 year child to die by electrocution, it reverses the jury verdict convicting her of intentional child abuse resulting in death because the court should have allowed the defendant to offer negligent child abuse as a lesser included offense. State v. Blair, 272 Neb. 951
Filed January 19, 2007. No. S-05-544.
The Supremes gives the defendant a pass and orders the Lancaster County district court to retry the defendant with a negligent child abuse option as a lesser included offense. The Supremes thought that since there were so many other scum slacker kids in the house at least one of them could have taken charge of the child's care. The Court further found that even though the jury found intentional child abuse, it could have found it also negligent. I see that the Supreme Court didnt see a need to cite the child abuse statutes in its decision (28-707 et seq RRS Neb) "The dispositive issue is whether an instruction on negligent child abuse was warranted by the evidence. Negligent child abuse is a lesser-included offense of intentional child abuse resulting in death. See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006). The jury was instructed that it could find Blair guilty of intentional child abuse resulting in death, guilty of intentional child abuse, or not guilty."We conclude the evidence provided at least a rational basis for the jury to acquit Blair of intentional child abuse and convict her of negligent child abuse. This is not to say that the jury would necessarily have believed the evidence presented by Blair. However, such evidence provided a rational basis for the jury to potentially find that the abuse was committed negligently and not knowingly and intentionally the jury was not given the opportunity to consider whether Blair acted negligently and the failure to instruct on the elements of negligent child abuse was not harmless error. We therefore reverse the judgment of conviction and remand the cause for a new trial.